Recommendations
50. The Minister of Customs and the Associate Minister of Commerce recommend that the Committee:
1. note that Cabinet has agreed that the Ministry of Economic Development's National Enforcement Unit (NEU) would be responsible for enforcing the criminal offence provisions of the Copyright Act 1994 and Trade Marks Act 2002 [CAB Min (06) 32/12 and CAB Min (06) 46/6];
2. note that legislative changes to enable the NEU to undertake this role (referred to in the previous recommendation) are expected to be made in the Trade Marks (International Treaties and Enforcement) Amendment Bill, which is almost ready for introduction;
3. note that in many situations it would be more efficient for Customs to prosecute an importer of counterfeit or pirated goods, rather than the NEU, on account of Customs existing role at the border;
4. note that if Customs was able to prosecute importers of counterfeit or pirated goods it would not be obliged to take any particular prosecution, and the costs of these prosecutions would be met within its baseline;
5. agree that Customs should be empowered to take prosecutions against a person importing or possessing any imported goods which would constitute a breach of the criminal offence provisions of sections 120 to 124 of the Trade Marks Act 2002 and sections 131, 198, and 226 of the Copyright Act 1994;
6. agree that for this purpose (referred to in recommendation 5) the Trade Marks and Copyright Acts should be amended to enable Customs to:
Investigative powers specific to goods under Customs' control
6.1 without a warrant, seize any goods subject to the control of Customs that a Customs officer has reasonable grounds to believe is evidence of, or has significant relevance to, an investigation of an offence under the statutory provisions referred to in recommendation 5;
6.2 require, by notice in writing, any person (other than an officer of a central government department) believed to have imported goods or to have been involved in their import as an agent to supply (within a reasonable time) documents and other recorded information related to goods that are still under Customs' control for the purpose of determining whether the goods should be retained or released;
6.3 require any person (other than an officer of a central government department) believed to have imported goods or to have been involved in the import as an agent to appear at a reasonable time and place, specified in writing, and to answer questions relevant to an investigation of goods that are still under Customs' control for the purpose of determining whether the goods should be retained or released;
Other investigative powers
6.4 apply for a judicial order authorising the production of documents and other recorded information believed to be evidence of, or to be material of significant relevance to, the investigation of an offence in respect of imported goods, under the statutory provisions referred to in recommendation 5;
6.5 apply for a search warrant to search any place or thing believed to contain evidence or material of significant relevance to an investigation of an offence in respect of imported goods, under the statutory provisions referred to in recommendation 5, at any reasonable time of the day or night and in doing so use any assistance and any force that is reasonable in the circumstances;
6.6 seize any goods specified in the warrant;
6.7 retain lawfully seized goods, subject to a Court order for return of the goods, for the purpose of investigation or prosecution of an offence;
6.8 dispose of perishable seized goods at the discretion of the Chief Executive, subject to any order of the Court;
6.9 take photographs or sound or video recordings of the place or thing searched, and of any thing found in that place, if the person executing the warrant has reasonable grounds to believe that the photographs or sound or video recordings may be relevant in any proceedings arising from the execution of the warrant;
6.10 copy a document or part of a document where there are reasonable grounds to believe that it may be seized under the search power;
7. agree that all seized goods that are not perishable will be disposed of at the discretion of the courts;
8. agree that it will be an offence to, without reasonable excuse, deliberately withhold information requested under the provisions of recommendations 6.2 and 6.4, or to refuse to be interviewed under the provisions of recommendation 6.3;
9. agree that the penalty for the offences referred to in recommendation 8 will be:
- imprisonment for a term not exceeding 6 months or to a fine not exceeding $10,000 for an individual; or
- a fine not exceeding $50,000 in the case of a body corporate;
10. invite the Associate Minister of Commerce to issue instructions to the Chief Parliamentary Counsel to give effect to the above recommendations through the Trade Marks (International Treaties and Enforcement) Amendment Bill; and
11. note that this Cabinet paper is to be published on the internet, subject to any appropriate deletions in accordance with the Official Information Act 1982.
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